Humphries v McDermott Drilling Pty Ltd - [2019] NSWSC 508

Supreme Court

New South Wales

Medium Neutral Citation: Humphries v McDermott Drilling Pty Ltd [2019] NSWSC 508
Hearing dates: 9 April 2019
Date of orders: 07 May 2019
Decision date: 07 May 2019
Jurisdiction: Common Law
Before: Schmidt J
Decision:
(1)   Mr Humphries have leave to bring these proceedings, nunc pro tunc.

(2)   The motion filed for McDermott be dismissed.
(3)   PK Simpson & Co is to bear the parties’ costs of the motions, as agreed or assessed.
Catchwords:
CIVIL PROCEDURE — Time — Extension of time — leave sought under s 151D of the Workers Compensation Act 1987 (NSW) — leave sought granted nunc pro tunc — costs
CIVIL PROCEDURE — Pleadings — Striking out — Order seeking to strike out the statement of claim and in the alternative order seeking a permanent stay — Motion dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Motor Accidents Act 1988 (NSW)
Occupational Health and Safety Act 2000 (NSW) (repealed)
Occupational Health and Safety Regulation 2001 (NSW) (repealed)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited: Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408 (1999) 48 NSWLR 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Doulaveras v Daher (2009) ALR 627; [2009] NSWCA 58
Itex Graphix Pty Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Le v Williams [2004] NSWSC 645; [2005] NSW ConvR 56-109
RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56
Salidio v Nominal Defendant (1993) 32 NSWLR 524
Shaw v Yarranova Pty Ltd [2011] VSCA 55
Category: Principal judgment
Parties: Charles Patrick Humphries (Plaintiff)
McDermott Drilling Pty Ltd
ACN 000819536 (First Defendant)
John Botica (Second Defendant)
Representation:
Counsel:
B Gross QC (Plaintiff)
D Benson (First Defendant)
Solicitors:
P K Simpson & Co (Plaintiff)
TurksLegal (Defendants)

File Number(s): 2018/99154
Publication restriction: Nil

Judgment

Mr Humphries seeks leave under s 151D(1) of the Workers Compensation Act1987 (NSW) extending time to bring these proceedings, in which he claims damages for injuries which he suffered in September 2009, when his spine was injured while he was carrying a water pump with another employee of McDermott Drilling Pty Ltd, Mr Botica. Mr Humphries was then employed as a driller, on his case, working in coal exploration drilling at a BHP site.
The leave sought is opposed in circumstances where in 2012 Mr Humphries commenced similar proceedings to those which he now seeks leave to pursue against both McDermott and Mr Botica in this Court, which were discontinued in 2015, on his case as the result of representative error.

The issues

By its motion McDermott sought orders under Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), striking out Mr Humphries statement of claim and in the alternative, orders permanently staying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 508
Decision Date: 07 May 2019

CaseChat Overview and Summary

The applicant, Humphries, filed a claim against McDermott Drilling Pty Ltd for damages arising from an injury sustained during employment. The dispute centred around the timeliness of the application for leave to extend the time limit for filing the claim, as well as the validity of the statement of claim itself. The matter was heard in the Workers Compensation Commission of New South Wales.

The legal issues before the court involved the interpretation and application of section 151D of the Workers Compensation Act 1987 (NSW), which allows for an extension of time to lodge a claim. The respondent argued that the application for leave was not made within the required timeframe and sought to strike out the statement of claim or, in the alternative, obtain a permanent stay of the proceedings. The court was required to determine whether the applicant's application for leave was sufficiently diligent and whether the statement of claim disclosed a reasonable cause of action.

In its decision, the court found that the applicant's application for leave to extend time was made with sufficient diligence, warranting the grant of leave nunc pro tunc. The court held that the applicant had demonstrated a satisfactory explanation for the delay in filing the claim and had acted promptly once the injury was discovered. The court also found that the statement of claim disclosed a reasonable cause of action, dismissing the respondent's application to strike it out or for a permanent stay. Consequently, the motion to strike out and stay was dismissed.

No specific final orders were mentioned in the summary, but the court's decision allowed the applicant to proceed with the claim, granted leave to extend the time limit for filing the claim, and dismissed the respondent's applications to strike out the statement of claim and for a permanent stay.

Orders